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According to the complaint, California EPA ’s Office of Environmental Health Hazard Assessment added cocamide DEA to the Prop. 65 list of chemicals known to the state to cause cancer in June 2012, and the listing required warnings one year later. Allegedly “used in Products as a foam stabilizer, emulsifier and viscosity builder in cosmetic products,” the chemical is allegedly absorbed through the skin or ingested. The plaintiff seeks civil penalties of $2,500 per day for each violation of Prop. 65. According to CEH, tests on some 100 items, including brand name products and store brands for both children and adults, revealed the presence of cocamide DEA in dozens of them at levels ranging from 10,000 parts per million (ppm) to more than 200,000 ppm. See CEH Press Release, August 27, 2013.

Prop. 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, was enacted as a ballot measure. It requires warnings for products containing chemicals listed as “known to the State” to cause cancer or reproductive harm. Failure to provide these warnings can result in substantial financial penalties. Both government law enforcement authorities and private citizens can bring court proceedings alleging failure to give required warnings. In this case, despite certificates of merit about the alleged violations provided by CEH to the state attorney general and district attorneys in the state’s larger counties, none of the public prosecutors chose to enforce Prop. 65 against these defendants.